Anyone taken the time to file a probate for the driver who confessed that the had the money as the result of a drug sale and then was subsequently murdered? His wife acepted service for him before he was killed and the forfeiure action was timely filed. Would appreciate any help and advise.

I think the proper procedure when a Defendant dies would be to file a suggestion of death under Tex. R. Civ. P. 152 that lists the wife as the heir of the defendant. That will make the clerk issue a writ of scire facias to the wife. After service and return of the writ, the case will proceed against her as the heir.

In the past I have filed a document entitled "Suggestion of Death" and attached an obituary or news article of the death to the pleading. I would also attach an order whereby the Judge orders the Clerk of the Court to issue a writ of scire facias upon Mary Defendant, to be served by personal service at some address.

This puts the burden on the wife to either get an estate opened or to deal with the suit. You don't want to be the person filing the probate proceeding due to the time and expense involved.

Hope this helps.

I have this problem right now. Seems like I found some case law that said it is not proper to file aginst the estate, but you must file against the executor of the estate. I will try to find my research.

I have a question along the same lines--with variations. What if you have two defendants who are prosecuted and convicted federally for making false IDs and sent to prison. The dough and computer are turned over to the feds for forfeiture action, but for some reason, none is filed, i.e. it slipped through the cracks. Now, the feds return the evidence (dough and computer) to the state. One defendant (both were illegal aliens) has since died in prison; the other defendant was deported to some country in central America after release. No one, including the defense attorneys, have any idea who next of kin are for the dead guy or where to locate the other guy. How do you dispose of the dough and computer since its way too late to file forfeiture actions. I cede to the wiser heads in this august group of experienced prosecutors who must deal with this stuff every day!

Janette Ansolabehere
DPS Senior Assistant General Counsel

Off the top of my head, I would say make every attempt to locate these guys, including written notice to their lawyers. After that doesn't work, notice by publication next and look to forfeit as abandoned property. However, this is covered under CCP 18.17 and won't work on CCP 59 seizures.

I have a forfeiture of a vehicle case. In the petition I requested service on the possessor of the vehicle and the registered owner. The possessor has been served and has defaulted. The registered owner died November 2001. I do not know anything about the registered owner. I have no idea about next of kin, executor of estate, etc. I cannot find a probate case. Any suggestions?

See if you can determine in what city the owner died. Then request a death certificate from that city's vital records department.

Block #22 of the death certificate gives the name of the person informing of the owner's death. Block #23 of the death certificate gives the informant's mailing address. The informant, sometimes also a family member, might be able to give you direction on whether there was a will or any heirs.

Good luck.

One more variation. Motor-vehicle crash with driver (sole occupant) of one vehicle killed in the crash. Investigating officers find and seize large sum of currency (no real doubt that its contraband) from possession of deceased driver. Who gets notification of seizure? My gut is to rely on 59.04(k) in that no person was in possession at the time of the seizure and owner is unknown. Any thoughts?

Remember the case is against the property not the Respondent. I had a case where money was seized, and respondent is served and answered. Respondent dies. I held a hearing before the judge and got a judgment for the money. The Respondent is an interested party, but again, the suit is against the money.

Here is another twist - man murders son in law in house. man is found incompetent and is currently in state hospital. man's wife and daughter start cooking meth in man's house. I want to seize it (yes, I know, poor guy), but can I seize it if he's incompetent? I think it's like Curtis said - the suit is against the property - not the guy. Right?

Right, the suit is against the property. In this case, I think the judge would assign an ad litem for the man, if he didn't already have one because of his mental issues.

Thanks Mack! And he does have an attorney so that should make it easy.